Pub Date : 2021-11-15DOI: 10.1093/oso/9780192896841.003.0008
C. Goodman
This Chapter draws on the cumulative effect of the research and analysis in the book in order to address the overall enquiry concerning the nature and extent of coastal State jurisdiction over living resources in the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea (LOSC). First, it proposes a general statement or ‘jurisdictional test’ regarding the nature of coastal State jurisdiction over the living resources of the EEZ. It suggests that this jurisdiction is flexible but functional, consisting of a broad discretion exercisable within functional limits that are determined on the basis of reasonableness and by reference to the balance of rights and interests reflected in the EEZ regime. Second, it outlines some more thematic conclusions about the extent of coastal State jurisdiction, considering the effect that State practice has had on the interpretation or development of relevant aspects of the LOSC, and the extent to which it justifies assertions that the ‘creeping jurisdiction’ of coastal States will upset the balance of rights and interests established in the LOSC. The Chapter concludes the book with some brief reflections on the critical importance of striking the right balance between the rights and duties of coastal States and other States in the EEZ, in order to maintain the sui generis regime established in the LOSC and effectively and innovatively address the current and future challenges of international fisheries governance.
{"title":"Conclusion","authors":"C. Goodman","doi":"10.1093/oso/9780192896841.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780192896841.003.0008","url":null,"abstract":"This Chapter draws on the cumulative effect of the research and analysis in the book in order to address the overall enquiry concerning the nature and extent of coastal State jurisdiction over living resources in the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea (LOSC). First, it proposes a general statement or ‘jurisdictional test’ regarding the nature of coastal State jurisdiction over the living resources of the EEZ. It suggests that this jurisdiction is flexible but functional, consisting of a broad discretion exercisable within functional limits that are determined on the basis of reasonableness and by reference to the balance of rights and interests reflected in the EEZ regime. Second, it outlines some more thematic conclusions about the extent of coastal State jurisdiction, considering the effect that State practice has had on the interpretation or development of relevant aspects of the LOSC, and the extent to which it justifies assertions that the ‘creeping jurisdiction’ of coastal States will upset the balance of rights and interests established in the LOSC. The Chapter concludes the book with some brief reflections on the critical importance of striking the right balance between the rights and duties of coastal States and other States in the EEZ, in order to maintain the sui generis regime established in the LOSC and effectively and innovatively address the current and future challenges of international fisheries governance.","PeriodicalId":310785,"journal":{"name":"Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121892086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1093/oso/9780192896841.003.0005
C. Goodman
This Chapter examines the permissible scope and extent of coastal State jurisdiction over unlicensed foreign fishing vessels in transit through the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea. While the primacy of the freedom of navigation has traditionally been the dominant narrative in the law of the sea, this Chapter argues that the coastal State’s sovereign rights over living resources are now accepted to provide a basis for regulations to be applied to all foreign fishing vessels navigating in the EEZ, even if they are only transiting through the zone without fishing. By examining the variety of regulations that are applied by States in practice, the Chapter establishes that, in relation to foreign fishing vessels and fishing support vessels, the contemporary freedom of navigation effectively equates to a right to undertake continuous and expeditious passage from one point beyond the EEZ to another point beyond the EEZ, except in circumstances involving force majeure or distress, or activities undertaken with the authorization of the coastal State. At the same time, the Chapter notes that the rights of coastal States involve correlative duties, and explores how the concepts of due regard, reasonableness, and the balance of interests apply to limit the extent of coastal State regulation in this area.
{"title":"Jurisdiction over Unlicensed Foreign Fishing Vessels in Transit through the EEZ","authors":"C. Goodman","doi":"10.1093/oso/9780192896841.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192896841.003.0005","url":null,"abstract":"This Chapter examines the permissible scope and extent of coastal State jurisdiction over unlicensed foreign fishing vessels in transit through the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea. While the primacy of the freedom of navigation has traditionally been the dominant narrative in the law of the sea, this Chapter argues that the coastal State’s sovereign rights over living resources are now accepted to provide a basis for regulations to be applied to all foreign fishing vessels navigating in the EEZ, even if they are only transiting through the zone without fishing. By examining the variety of regulations that are applied by States in practice, the Chapter establishes that, in relation to foreign fishing vessels and fishing support vessels, the contemporary freedom of navigation effectively equates to a right to undertake continuous and expeditious passage from one point beyond the EEZ to another point beyond the EEZ, except in circumstances involving force majeure or distress, or activities undertaken with the authorization of the coastal State. At the same time, the Chapter notes that the rights of coastal States involve correlative duties, and explores how the concepts of due regard, reasonableness, and the balance of interests apply to limit the extent of coastal State regulation in this area.","PeriodicalId":310785,"journal":{"name":"Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128349024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1093/oso/9780192896841.003.0003
C. Goodman
This Chapter examines the material scope of the coastal State’s jurisdiction over foreign vessels in the exclusive economic zone (EEZ) on the basis of its sovereign rights over living resources, in order to determine what activities and which vessels come within this regulatory power. It argues that ‘fishing’ is no longer simply a process that involves fishing vessels catching fish; in the modern industrial fishing complex, where bunkering, transhipment, and resupply services allow fishing vessels to stay at sea for months at a time, fishing is part of a chain of events involving multiple actors and activities, all of which fall within the regulatory authority of the coastal State in the EEZ. Notwithstanding the conflicting and inconsistent approaches that international courts and tribunals have taken to this issue, the Chapter’s examination of national, regional, and international practice demonstrates that coastal States can regulate a wide range of fishing and related activities on the basis of their sovereign rights over living resources in the EEZ. This includes all the ‘fishing related activities’ and ‘fishing support vessels’ that are involved in modern industrial fishing, regardless of whether the vessels in question are licensed to fish in the coastal State’s EEZ, or whether the activities in question relate to living resources harvested in the coastal State’s EEZ. This finding as to the underlying scope of coastal State jurisdiction provides a crucial foundation for the remainder of the book.
{"title":"The Regulation of ‘Fishing’ and Related Activities","authors":"C. Goodman","doi":"10.1093/oso/9780192896841.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780192896841.003.0003","url":null,"abstract":"This Chapter examines the material scope of the coastal State’s jurisdiction over foreign vessels in the exclusive economic zone (EEZ) on the basis of its sovereign rights over living resources, in order to determine what activities and which vessels come within this regulatory power. It argues that ‘fishing’ is no longer simply a process that involves fishing vessels catching fish; in the modern industrial fishing complex, where bunkering, transhipment, and resupply services allow fishing vessels to stay at sea for months at a time, fishing is part of a chain of events involving multiple actors and activities, all of which fall within the regulatory authority of the coastal State in the EEZ. Notwithstanding the conflicting and inconsistent approaches that international courts and tribunals have taken to this issue, the Chapter’s examination of national, regional, and international practice demonstrates that coastal States can regulate a wide range of fishing and related activities on the basis of their sovereign rights over living resources in the EEZ. This includes all the ‘fishing related activities’ and ‘fishing support vessels’ that are involved in modern industrial fishing, regardless of whether the vessels in question are licensed to fish in the coastal State’s EEZ, or whether the activities in question relate to living resources harvested in the coastal State’s EEZ. This finding as to the underlying scope of coastal State jurisdiction provides a crucial foundation for the remainder of the book.","PeriodicalId":310785,"journal":{"name":"Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115549022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1093/oso/9780192896841.003.0006
C. Goodman
This Chapter examines the coastal State’s enforcement jurisdiction over fishing activities in the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea (LOSC), including the boarding, inspection, arrest, and seizure of vessels, the prompt release procedure, and the imposition of penalties. The Chapter argues that this jurisdiction should be interpreted by reference to the overall scheme of the LOSC, taking into account not only the rights but also the responsibilities of the coastal State, as well as those of flag States, in order to meaningfully preserve the balance of interests that is at the heart of the sui generis regime for the EEZ. However, while the balance of interests is commonly invoked in the jurisprudence on enforcement, international courts and tribunals have generally taken a narrow approach to its application, seeking to balance specific, corresponding rights of flag and coastal States in a binary equation, rather than the broader set of rights and responsibilities that underpin the EEZ regime. Faced with these limitations, as well as the practical and financial challenges of carrying out the primarily physical enforcement measures envisaged in the LOSC, coastal States have developed a range of alternative approaches to achieve the same result. As this Chapter demonstrates, these include: the conduct of cooperative and collaborative enforcement activities; a variety of prescriptive techniques to prevent and deter illegal fishing activity; and the use of modern technology to deliver cost-effective and remote, ‘no-force’ enforcement jurisdiction.
{"title":"Enforcement Jurisdiction over Foreign Fishing in the EEZ","authors":"C. Goodman","doi":"10.1093/oso/9780192896841.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780192896841.003.0006","url":null,"abstract":"This Chapter examines the coastal State’s enforcement jurisdiction over fishing activities in the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea (LOSC), including the boarding, inspection, arrest, and seizure of vessels, the prompt release procedure, and the imposition of penalties. The Chapter argues that this jurisdiction should be interpreted by reference to the overall scheme of the LOSC, taking into account not only the rights but also the responsibilities of the coastal State, as well as those of flag States, in order to meaningfully preserve the balance of interests that is at the heart of the sui generis regime for the EEZ. However, while the balance of interests is commonly invoked in the jurisprudence on enforcement, international courts and tribunals have generally taken a narrow approach to its application, seeking to balance specific, corresponding rights of flag and coastal States in a binary equation, rather than the broader set of rights and responsibilities that underpin the EEZ regime. Faced with these limitations, as well as the practical and financial challenges of carrying out the primarily physical enforcement measures envisaged in the LOSC, coastal States have developed a range of alternative approaches to achieve the same result. As this Chapter demonstrates, these include: the conduct of cooperative and collaborative enforcement activities; a variety of prescriptive techniques to prevent and deter illegal fishing activity; and the use of modern technology to deliver cost-effective and remote, ‘no-force’ enforcement jurisdiction.","PeriodicalId":310785,"journal":{"name":"Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124964032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1093/oso/9780192896841.003.0007
C. Goodman
This Chapter considers the enforcement of coastal State fisheries laws and regulations beyond the exclusive economic zone (EEZ) following a hot pursuit. While the general framework for hot pursuit established in the 1982 United Nations Convention on the Law of the Sea is clear, its substantive content and operation—particularly in situations that do not fall neatly within the black and white terms of the framework—is less clear. This Chapter considers the key challenges to this framework, and the extent to which—and the ways in which—coastal States have implemented, developed, or departed from it in practice, focusing in particular on the domestic legal basis for conducting hot pursuit, the use of technology in the conduct of hot pursuit, and cooperative approaches to hot pursuit. While recognizing that the hot pursuit doctrine must strike an appropriate balance between the sovereign rights of the coastal State to enforce its laws and the exclusive jurisdiction of the flag State over its vessels on the high seas, the Chapter argues that there is also a broader community interest to be balanced on both sides of this equation: to ensure the effective conservation and management of living resources, and preserve the freedom of navigation on the high seas. This is reflected in the Chapter’s examination of practice, which reveals that States have adopted and implemented a functional, contemporary approach to hot pursuit within the framework of the existing doctrine, which itself has proved to be at once flexible and remarkably enduring.
{"title":"Hot Pursuit and the Exercise of Enforcement Jurisdiction beyond the EEZ","authors":"C. Goodman","doi":"10.1093/oso/9780192896841.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192896841.003.0007","url":null,"abstract":"This Chapter considers the enforcement of coastal State fisheries laws and regulations beyond the exclusive economic zone (EEZ) following a hot pursuit. While the general framework for hot pursuit established in the 1982 United Nations Convention on the Law of the Sea is clear, its substantive content and operation—particularly in situations that do not fall neatly within the black and white terms of the framework—is less clear. This Chapter considers the key challenges to this framework, and the extent to which—and the ways in which—coastal States have implemented, developed, or departed from it in practice, focusing in particular on the domestic legal basis for conducting hot pursuit, the use of technology in the conduct of hot pursuit, and cooperative approaches to hot pursuit. While recognizing that the hot pursuit doctrine must strike an appropriate balance between the sovereign rights of the coastal State to enforce its laws and the exclusive jurisdiction of the flag State over its vessels on the high seas, the Chapter argues that there is also a broader community interest to be balanced on both sides of this equation: to ensure the effective conservation and management of living resources, and preserve the freedom of navigation on the high seas. This is reflected in the Chapter’s examination of practice, which reveals that States have adopted and implemented a functional, contemporary approach to hot pursuit within the framework of the existing doctrine, which itself has proved to be at once flexible and remarkably enduring.","PeriodicalId":310785,"journal":{"name":"Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone","volume":"2978 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127457127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1093/oso/9780192896841.003.0004
C. Goodman
This Chapter explores how coastal States use their prescriptive jurisdiction to regulate foreign fishing in the exclusive economic zone (EEZ) and how this implements, varies, or develops the framework established in the 1982 United Nations Convention on the Law of the Sea (LOSC). It demonstrates that the formula established in the LOSC for regulating access to the living resources of the EEZ—the obligation to establish whether there is a surplus, the criteria to be applied in allocating any surplus to foreign States, and the terms and conditions that might be imposed on foreign vessels involved in extracting it—bears little similarity to the contemporary regulation of foreign fishing by coastal States. While this formula was intended to ensure a balance between the exclusive jurisdiction of coastal States and the interests of the international community, in practice it has proved poorly adapted to this task, and very few coastal States follow the specific mechanisms set out in the LOSC. Instead, the detailed analysis of State practice in this Chapter shows how coastal States use the broad discretions in the LOSC to pursue a wide range of economic, social, political, national security and foreign policy objectives, and adopt regulations that broaden the substantive, geographic, personal and temporal application of their influence.
{"title":"Prescriptive Jurisdiction over Foreign Fishing in the EEZ","authors":"C. Goodman","doi":"10.1093/oso/9780192896841.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780192896841.003.0004","url":null,"abstract":"This Chapter explores how coastal States use their prescriptive jurisdiction to regulate foreign fishing in the exclusive economic zone (EEZ) and how this implements, varies, or develops the framework established in the 1982 United Nations Convention on the Law of the Sea (LOSC). It demonstrates that the formula established in the LOSC for regulating access to the living resources of the EEZ—the obligation to establish whether there is a surplus, the criteria to be applied in allocating any surplus to foreign States, and the terms and conditions that might be imposed on foreign vessels involved in extracting it—bears little similarity to the contemporary regulation of foreign fishing by coastal States. While this formula was intended to ensure a balance between the exclusive jurisdiction of coastal States and the interests of the international community, in practice it has proved poorly adapted to this task, and very few coastal States follow the specific mechanisms set out in the LOSC. Instead, the detailed analysis of State practice in this Chapter shows how coastal States use the broad discretions in the LOSC to pursue a wide range of economic, social, political, national security and foreign policy objectives, and adopt regulations that broaden the substantive, geographic, personal and temporal application of their influence.","PeriodicalId":310785,"journal":{"name":"Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130332047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1093/oso/9780192896841.003.0002
C. Goodman
This Chapter outlines the legal framework for the regulation of living resources in the exclusive economic zone (EEZ) as established in the 1982 United Nations Convention on the Law of the Sea (LOSC) and other relevant international instruments. It demonstrates how the LOSC seeks to balance the competing interests of coastal and flag States and argues that while the ‘non-specific’ standards established in the LOSC have subsequently been strengthened by the recognition of additional conservation and management concepts, the basic rights and obligations of coastal States remain ambiguous, open-ended, and highly qualified. In order to clarify this ambiguity, it looks beyond the basic list of rights and duties set out on the face of the LOSC to establish what coastal States must, may, and must not do in exercising their sovereign rights over living resources in the EEZ. It examines the approaches taken by international courts and tribunals in reviewing the innovations and interpretations offered by coastal States in their implementation of the LOSC, and identifies the broader, normative principles that constrain and enable coastal State jurisdiction in the EEZ. This includes discussion of the rules of due regard and due diligence, the role of the margin of appreciation doctrine, and the extent to which a coastal State may act to protect—or prevent interference with—its sovereign rights. The Chapter concludes by drawing these concepts together to outline the basic framework that governs the continuum of jurisdiction over living resources in the EEZ.
{"title":"The Framework for Coastal State Jurisdiction over Fishing in the EEZ","authors":"C. Goodman","doi":"10.1093/oso/9780192896841.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780192896841.003.0002","url":null,"abstract":"This Chapter outlines the legal framework for the regulation of living resources in the exclusive economic zone (EEZ) as established in the 1982 United Nations Convention on the Law of the Sea (LOSC) and other relevant international instruments. It demonstrates how the LOSC seeks to balance the competing interests of coastal and flag States and argues that while the ‘non-specific’ standards established in the LOSC have subsequently been strengthened by the recognition of additional conservation and management concepts, the basic rights and obligations of coastal States remain ambiguous, open-ended, and highly qualified. In order to clarify this ambiguity, it looks beyond the basic list of rights and duties set out on the face of the LOSC to establish what coastal States must, may, and must not do in exercising their sovereign rights over living resources in the EEZ. It examines the approaches taken by international courts and tribunals in reviewing the innovations and interpretations offered by coastal States in their implementation of the LOSC, and identifies the broader, normative principles that constrain and enable coastal State jurisdiction in the EEZ. This includes discussion of the rules of due regard and due diligence, the role of the margin of appreciation doctrine, and the extent to which a coastal State may act to protect—or prevent interference with—its sovereign rights. The Chapter concludes by drawing these concepts together to outline the basic framework that governs the continuum of jurisdiction over living resources in the EEZ.","PeriodicalId":310785,"journal":{"name":"Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124266166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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